Horse meat fraudulently marketed and sold as beef has much of Europe in an uproar. Processed meat products that so many assumed contained beef as the major meat ingredient have in fact been discovered to contain horsemeat in various percentage amounts. The labels on those products gave no clue that the meat being offered for public consumption was equine in nature rather than bovine, and no print or electronic advertising was to be seen to inform consumers that the beefy food stuffs being marketed were in fact a horse of a different color. So what’s up?
The modern trend in western laws protecting consumers has minimized the importance
caveat emptor
(let the buyer beware). Although the buyer is still required to make a reasonable inspection of goods upon purchase, increased responsibilities have been placed upon the seller, and the doctrine of
caveat venditor
(Latin for “let the seller beware”) has become more prevalent. Generally, there is a legal presumption that a seller makes certain warranties unless the buyer and the seller agree otherwise. This trend on laws to protect consumers is now being seen in China as well.
The main laws and regulations governing advertising in the PRC are as follows:
l
Advertising Law of the People’s Republic of China
(“Advertising Law”), became effective as of February 1, 1995;
l
Regulations on Administration of Advertisements
, became effective as of December 1, 1987;
l
Detailed Implementing Rules for the Regulation on Advertising
, amended in 2004 and took effect from January 1, 2005; and
l
Measures for Advertisements Broadcasted on Radio and TV,
became
effective as of January 1, 2010.
According to the Advertising Law, “Advertising” refers to any commercial advertisement, which a business operator or service provider pays for through certain media, or in certain forms, directly or indirectly introducing their commodities for sale, or services being provided. Chinese advertising law provides that advertisements shall be true and lawful and shall also be in compliance with social morality and professional ethics. Advertisements must not contain any false information and should not mislead or defraud consumers. Advertisers, advertising agents and advertisement publishers engaged in advertising activities must follow the principles of fairness, honesty and good faith.
I began this article discussing how the cousins of Sea Biscuit, Secretariat, and let’s not forget Man o’ War, may have ingloriously suffered the indignity of ending up in frozen lasagna and other gourmet treats in Europe. So what food advertising laws are in place in the PRC?
The laws and regulations on advertising of food in the PRC are:
“The Food Safety Law of the People’s Republic of China”, which was adopted on February 28, 2009 and came into force as of June 1, 2009. The “Food Safety Law” regulates food advertisements and states that the contents of food advertisement shall be true, shall not contain any falsehood or exaggeration, nor shall they claim to aid in the prevention or treatment of any disease.
In 1995, the State Administration for Industry &Commerce (SAIC) issued the “Interim Rules on Publication of Food Advertising” to set forth detailed rules on food advertising. The “Interim Rules on Food Advertising” were amended by SAIC on December 3 of 1998. According to the “Interim Rules on Publication of Food Advertising”, the general rule is that food advertising shall be true, scientific, accurate and in compliance with all laws and regulations. Food advertising shall not deceive or mislead consumers.
To further strengthen the supervision of food advertising and to ensure food safety, the SAIC issued the “Food Advertising Regulatory Framework” on August 28, 2009 to crack down on six kinds of deceptive food advertisements. Food advertisements using the names or images of government staff, medical organizations or doctors will be scrutinized as well as for functional food products where you have experts and consumers promoting their effectiveness.
Furthermore, the State Food and Drug Administration (SFDA) issued its “Interim Rules on Examination of Functional Food Advertising” on May 24, 2005. For a functional food product advertising to be published in China it must be approved by the SFDA at the provincial level and relevant approval certificates for such functional food product have been required to be provided since July 1, 2005.
Food advertising refers to advertisements which are published through various media or in various forms pertaining to food which are divided into four categories; general food advertisement, functional food advertisement, novel food advertisement and special dietary food advertisement.
General food
, refers to food which makes no claims of health benefits on its label or its packaging.
Functional food
, means food which makes claims of health benefits on its label (functional claims) but do not claim to cure disease.
Novel food,
refers to food which features ingredients or production techniques which have not historically been a part of the diet of the Chinese people.
Special dietary food
, means food which is used to fulfill the specific dietary requirements of consumers. Special dietary foods cannot make functional claims with regard to the product itself, but claims can be made with regard to the ingredients of the product in question.
The following certificates are required to be presented when applying for publishing food advertisements:
(1) Business license;
(2) Sanitary permit;
(3) For functional food advertisement, the certificate of approval for such functional food is required to be presented;
(4) For novel food advertisement, the approval for trial production or sanitary approval for such novel food is required to be presented; and
(5) For Special dietary food advertisement, the approval for production is required to be presented.
Wording such as, “the most advanced science”, “the most advanced technology”, or “the most advanced processing technology”, is prohibited in food advertisements.
Food advertisements shall not advise that the food can for substituted for breast milk, or it cannot use images of women who are breast feeding their infants.
As to functional food advertisements, their content shall be strictly restricted according to the description or label approved by SFDA. Functional food advertisements are not allowed to be disguised as news reports, and advice that “this product cannot be substituted for any medicine” must be marked clearly in printed advertisement and should always be kept on the screen during TV commercials. The SFDA will also look into such things such as whether the advertisement carries wording that might cause them to be confused with drugs, whether it overstates any curative effects, and whether it has made use of the name or image of any medical institutions, doctors, experts, or consumers to testify to the specific efficacy of the particular food.
Any media or advertiser involved in releasing deceptive food advertisements and causing severe physical injuries or property damages will be deprived of advertisement distribution rights. Other illegal advertisements featuring statements from food regulators, inspectors, food industry associations or consumer associations will also be strictly dealt with.
Additionally, China also enhanced the supervision of celebrities who endorse false food advertisements. On July 30 of 2009, the SAIC issued the “Measures for the Supervision and Administration of Food Safety in the Circulation” which states that any organization or individual, social or corporation that actively participates in the false or misleading advertising of food products will bear equal responsibility with the manufacturer if a consumer’s legitimate interests are harmed. On that account, when found guilty of engaging in the false advertising of food, the celebrity endorser may bear responsibility equal to that of the food producers if the food endorsed by the celebrity caused harm to consumers. Injured consumers can either make a claim to the production enterprise, or directly demand compensation from the celebrity who recommended the food.
After suffering many food scandals in the past China is taking forward steps to protect its populace. I believe that the PRC will continue to improve in this regard in the future out of necessity, and, if for no other reason, out of self-defense.
Hawkeye in China